We The People, session iv, Interpretation

The U.S. Constitution
session iv
The Interpretation (C3)

major points of this session
Federalist Papers
Marbury v. Madison, 1803
Dred Scott v. Sanford, 1857
Industrial America
The American Century

Once upon a time there was a tribe of people living in a faraway
land. Whenever they had a difficult question to decide about
how to proceed, they would summon nine witch doctors in long
black robes.
Original Intent--A Parable

The Richest Mine for “Original Intent”
a series of 85 articles promoting ratification of the
Constitution by the New York Convention
published anonymously under the name of Publius,
one of four founders of the Roman republic
The Federalist
serial essays in
The Independent Journal
&
The New York Packet
Oct, 1787-Aug, 1788

the authors were Hamilton(51 articles), Madison
(26) and John Jay (5); 2 articles were the result of a
collaboration between Hamilton and Madison
The Federalist
serial essays in
&
The New York Packet
Oct, 1787-Aug, 1788

the authors were Hamilton(51 articles), Madison
(26) and John Jay (5); 2 articles were the result of a
collaboration between Hamilton and Madison
1788-this compilation was published in two volumes
from the beginning, federal court opinions have
quoted these essays as proof of the founders’
intent
The Federalist
serial essays in
&
The New York Packet
Oct, 1787-Aug, 1788

Though the authors of The Federalist Papers foremost wished to inﬂuence the
vote in favor of ratifying the Constitution, in Federalist No 1 they explicitly set
that debate in broader political terms:
According to historian Richard B. Morris, they are an "incomparable exposition
of the Constitution, a classic in political science unsurpassed in both breadth
and depth by the product of any later American writer."
Wikipedia
It has been frequently remarked, that it seems to have been reserved to the
people of this country, by their conduct and example, to decide the important
question, whether societies of men are really capable or not, of establishing good
government from reﬂection and choice, or whether they are forever destined to
depend, for their political constitutions, on accident and force.

THE FEDERALIST is the great American contribution to literature on
constitutional government. Thomas Jefferson proclaimed it "the best
commentary on the principles of government which was ever written." In
Cohens v. Virginia (1821), Chief Justice John Marshall wrote: "It (THE
FEDERALIST) is a complete commentary on our Constitution, and it is
appealed to by all parties in the questions to which that instrument gave
birth." From the 1790s until today, lawyers, judges, politicians, and scholars
have used ideas of THE FEDERALIST to guide their decisions about
constitutional issues.
John J. Patrick, Teaching The Federalist Papers, ERIC Clearinghouse, 1988

The authors of THE FEDERALIST had varying and sometimes clashing ideas about
government, but they agreed strongly on certain fundamental ideas: republicanism,
federalism, separation of powers, and free government.
republicanism-”A republican government is one "in which the scheme of
representation takes place" (No. 10). It is based on the consent of the governed
because power is delegated to a small number of citizens who are elected by the rest
federalism-In a federal republic, power is divided vertically between a general (federal)
government and several state governments. Two levels of government, each supreme
in its own sphere, can exercise powers separately and directly on the people. State
governments can neither ignore nor contradict federal statutes that conform to the
supreme law, the Constitution. This conception of federalism departed from traditional
forms, known today as confederations, in which states retained full sovereignty over
their internal affairs
separation of powers-"The accumulation of all powers, legislative, executive, and
judiciary, in the same hands...may justly be pronounced the very deﬁnition of
tyranny." (No. 47)
free government-Republicanism, federalism, and separation of powers are
characteristics of free government. According to THE FEDERALIST, free government is
popular government limited by law to protect the security, liberty, and property of
individuals. (cont.)
Ibid.

The authors of THE FEDERALIST had varying and sometimes clashing ideas about
government, but they agreed strongly on certain fundamental ideas: republicanism,
federalism, separation of powers, and free government.
free government-Republicanism, federalism, and separation of powers are
characteristics of free government. According to THE FEDERALIST, free government is
popular government limited by law to protect the security, liberty, and property of
individuals. A free government is powerful enough to provide protection against external
and internal threats and limited enough to prevent tyranny in any form. In particular, free
government is designed to guard against the most insidious danger of government by
the people--the tyranny of the many over the few. Of course, it was mainly the
"propertied few" that "Publius" had in mind, but this principle applies equally to
constitutional protection of religious, ethnic, racial or other minorities against oppression
by the majority
Ibid.

highlights among the essays:
Federalist No. 10-Madison discusses the means of preventing rule by majority
faction and advocates a large, commercial republic. It is generally regarded as
the most important of the 85 articles
Federalist No. 14-compliments it. Here he takes the measure of the United
States, declares it appropriate for an extended republic, and concludes with a
memorable defense of the constitutional and political creativity of the Federal
Convention
Federalist No. 39-Madison makes a clear exposition of what has come to be
called federalism, or the division of powers between national and state govts
Federalist No. 51-here he distills the arguments for checks and balances
Federalist No. 78-Hamilton lays the groundwork for the doctrine of judicial
review by federal courts of federal legislation or executive acts
adapted from Wikipedia

Nowhere in the original document ( C2) is the power to interpret the
meaning of its language assigned to a particular federal body. The
doctrine of judicial review which assigns this non delegated power to
the federal courts derives from the precedent of Marbury v Madison.
Before we look at this case, a review of certain basic legal concepts
and terms is in order.
jbp

Judicial review is one of the main characteristics of government in the
federal republic of the United States and other democratically elected
governments. It can be understood in the context of two distinct—but
parallel—legal systems (civil law and common law), and also by two
distinct theories on democracy and how a government should be set up
(the ideas of legislative supremacy and separation of powers). First, two
distinct legal systems, civil law and common law, have different views
about judicial review:
• Common-law judges are seen as sources of law, capable of creating new
legal rules, and also capable of rejecting legal rules that are no longer
valid. [supports judicial review]
• In the civil-law tradition judges are seen as those who apply the law, with
no power to create (or destroy) legal rules. [hence, no judicial review-jbp]
Wikipedia
Law-101

Civil Law vs Common Law Nations
Wikipedia

Civil Law vs Common Law Nations
Wikipedia
What explains these
two anomalies in
North America?

Types of Courts
court definition
trial court of general jurisdiction*
most cases will begin here, either
civil or criminal
appellate
hears cases on appeal from the
court of the first instance
U.S. Supreme Court
(USSC)
has both original and appellate
jurisdiction
U.S. Court of Appeals
U.S. District Court
circuit courts in ten regions
89 districts in the 50 states
________
* the power to hear and determine a case

As the #6 indicates,
Cincinnati is both the
seat of the Sixth
Circuit and one of
three seats of the
District of Southern
Ohio. The Sixth
Circuit includes 4
states and 9 districts.

Types of Courts
court definition
trial court of general jurisdiction
most cases will begin here, either
civil or criminal
appellate
hears cases on appeal from the
court of the first instance
U.S. Supreme Court
(USSC)
has both original and appellate
jurisdiction
U.S. Court of Appeals
U.S. District Court
circuit courts in nine regions
89 districts in the 50 states
trial courts of limited jurisdiction
state courts such as juvenile,
probate, family: federal such as
US Tax Court, Bankruptcy Courts

How do civil and criminal cases compare?
civil criminal
parties
private individuals or
government
society vs offenders
description
torts (suits) A/s sues
B/s
prosecution--the state
vs John Doe/s
origin
plaintiff claims that
defendant has failed to
carry out a duty owed
a grand jury has
handed down an
indictment
jury?
some instances,
most decided by judge
almost always
standard of proof
“preponderance of the
evidence”
“beyond a reasonable
doubt”
outcome
equity: defendant pays
damages/must do or
not do something
justice: defendant
does time/pays fine/
makes restitution

stare decisis
from Roman law, stare decisis et non quieta movere ( to stand by decisions
and not disturb the undisturbed). Courts should generally abide by
precedent and not disturb settled matters. This creates what is known as
“case law,” a third category after statute law (created by legislatures) and
administrative law (created by regulatory agencies).
The basic idea is that if law is often changing, then it becomes
uncertain. People should know what the law is.
There are, however, famous examples where precedent is overturned. In
Brown v Board of Education, 347 U.S. 483 (1954), the USSC reversed the
doctrine that “separate but equal” did not violate the constitutional
protection of AM XIV’s “equal protection” clause, Plessey (1896).
jbp

After this simplified grounding in legal concepts and court
structure, we now take up the case which established the
precedent for judicial review.
This is the means by which C3 is legally defined.
In the casebook method, law students read decisions.
These (1) state the facts, then (2) the legal issue/s, finally (3)
the decision and its supporting logic.
We shall follow this method.
jbp

Marbury: the facts
In the savage election of 1800, Democratic-Republican Jefferson• defeated
Federalist President John Adams.• During the lame-duck period Adams and the
Federalist Congress passed the Judiciary Act of 1801. It created many new district
courts and federal justices of the peace, which Adams filled with Federalist
appointments to stymie the incoming administration. He also appointed his
Secretary of State, John Marshall,• as Chief Justice of the USSC.
March 3, 1801, on his last night as Secretary of State, Marshall was busy signing
and sealing the commissions for these appointees, the infamous “Midnight
Judges,” as the Jeffersonians called them. One was William Marbury,• appointed
JP for DC. The commissions for some of the judges, including Marbury’s, were not
delivered before Jefferson took office the next day.
jbp

Marbury: the facts
In the savage election of 1800, Democratic-Republican Jefferson• defeated
Federalist President John Adams.• During the lame-duck period Adams and the
Federalist Congress passed the Judiciary Act of 1801. It created many new district
courts and federal justices of the peace, which Adams filled with Federalist
appointments to stymie the incoming administration. He also appointed his
Secretary of State, John Marshall,• as Chief Justice of the USSC.
March 3, 1801, on his last night as Secretary of State, Marshall was busy signing
and sealing the commissions for these appointees, the infamous “Midnight
Judges,” as the Jeffersonians called them. One was William Marbury,• appointed
JP for DC. The commissions for some of the judges, including Marbury’s, were not
delivered before Jefferson took office the next day.
He instructed his Secretary of State, Madison,• to not deliver the Federalist
commissions. The new Dem-Republican 7th Congress repealed the Judiciary Act
of ’01 and passed the Judiciary Act of 1802, canceling the extra slots.
Marbury filed suit in the USSC seeking a writ of mandamus.
jbp

writ of mandamus
a judicial remedy — in the form of an order from a superior court, to any
government subordinate court, corporation, or public authority — to do
(or forbear from doing) some speciﬁc act which that body is obliged
under law to do (or refrain from doing) — and which is in the nature of
public duty, and in certain cases one of a statutory duty….
The applicant pleading for the writ of mandamus to be enforced
should be able to show that he or she has a legal right to compel the
respondent to do or refrain from doing the speciﬁc act. The duty sought
to be enforced must have two qualities: It must be a duty of public
nature and the duty must be imperative and should not be discretionary.
Wikipedia

Marbury: the issues
• did Marbury have a right to the commission?
• do the laws of the country give Marbury a legal remedy?
• is asking the USSC for a writ of mandamus the correct
legal remedy?

Marbury: the decision
• yes--failure to deliver the commission was “violative of a vested
legal right”
• yes--"The Government of the United States has been
emphatically termed a government of laws, and not of men. It will
certainly cease to deserve this high appellation if the laws furnish
no remedy for the violation of a vested legal right."
• no--the Judiciary Act of 1789 which gave the USSC original
jurisdiction in cases of writs of mandamus conflicted with III.2.2:
and thus was unconstitutional.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all
the other Cases before mentioned [within the judicial power of the United States],
the supreme Court shall have appellate Jurisdiction...

The beauty of this decision is that it left the Democratic-
Republicans in the wrong, but gave them no way to challenge
the authority of the Marshall Court.
Marbury never got his commission, but the federal courts
got the power of judicial review.
jbp

The years after Marbury saw a gradual expansion of judicial review.
Little v. Barreme, 6 U.S. 170 (1804) declared an action by President
Adams during the Quasi war with France to be unconstitutional. In 1810
the Court set aside a state law in Fletcher v. Peck. In Martin v. Hunter's
Lessee, (1816), Marshall held that the USSC power of judicial review
extended to the decisions of state courts. But it would be more than fifty
years before judicial review would find another act of Congress
unconstitutional.
The great conflict of antebellum America was sectionalism, North,
South and West. The intensity of this political rivalry was the product of
the South’s “peculiar institution,’slavery.
Three times disunion threatened; the Missouri question in 1820; the
nullification controversy, 1828-33; and issues arising from the Mexican
War in 1850. Three times the North and South backed down.
jbp

The Compromise of 1850
the Mexican Cession of 1848• had created “bigger pens into which to cram
slaves”--James Russell Lowell. The California gold strike had created tremendous
interest in statehood (slave or free) in the new territory:
South wants Southern CA as a slave state
Texas claims territory as far as the Rio Grande
New Mexico resists Texas, applies to be a free state
Texas takes El Paso, Feb 1850
Mormon pioneers apply to become State of Deseret

territorial results of the Compromise:
CA admitted undivided as a free state, denying Southern expansion to the Pacific
TX traded some territorial claims for debt relief
NM and Deseret are denied statehood, become The NM and UT territory with slavery left to
the portentous doctrine of popular sovereignty

The Compromise of 1850--Other terms
the territorial terms clearly favored the anti-slavery North
to sweeten the pill for the South, the fatal Fugitive Slave Act was included:
the USSC had previously weakened the Fugitive Slave Act of 1793
the 1850 act created a fine for any law enforcement official who didn’t aid in recapturing
runaway “property.” $1,000 (app. $28,000 n today’s dollars). The official who aided in
recapture received a bonus and/or promotion
any person aiding runaways was subject to six months’ imprisonment and the above fine
the owner’s affidavit as to his “property”was all the proof necessary. There was no trial
a further concession was the preservation of slavery (but not the slave trade)
in the nation’s capital
the reaction to this pro-slavery law was a wave of violent “direct action” by
Northern abolitionists

The years after Marbury saw a gradual expansion of judicial
review. In 1810 the USSC set aside a state statute in Fletcher v.
Peck. But it waited more than fifty years before declaring another
act of Congress unconstitutional.
The great conflict of antebellum America was sectionalism,
North, South and West. The intensity of this political rivalry was
primarily the product of the South’s “peculiar institution”, slavery.
Three times disunion threatened; the Missouri question in 1820;
the nullification controversy, 1828-33; and issues arising in 1850
from the Mexican War. Three times North and South backed down.
But the last decade of “peace” saw a failure to compromise on
both sides.
jbp

Green areas represent
the potential lands
open to slavery under
the new doctrine of
popular sovereignty
distributed in 1854

The Kansas-Nebraska Act of 1854
opened new lands for settlement and had the effect of repealing the Missouri
Compromise of 1820
it had admitted MO as a slave state but set its southern border 36º30’ as the northern
boundary of future slave state expansion
Democratic Senator Steven Douglas• authored this bill to make possible the
settlement of new farmlands and a Midwestern Transcontinental Railroad
he hoped to duck the slavery controversy by leaving it up to the settlers to
decide-- “popular sovereignty”

Compromise of 1820
the “Slavocracy” financed its settlers while the Abolitionists responded in
kind. Rev. Lyman Beecher’s “bibles”

Compromise of 1820
the “Slavocracy” financed its settlers while the Abolitionists responded in
kind. Rev. Lyman Beecher’s “bibles”
1854-1861-”Bleeding Kansas”

The years after Marbury saw a gradual expansion of judicial
review. In 1810 the USSC set aside a state statute in Fletcher v.
Peck. But it waited more than fifty years before declaring another
act of Congress unconstitutional.
The great conflict of antebellum America was sectionalism,
North, South and West. The intensity of this political rivalry was
primarily the product of the South’s “peculiar institution”, slavery.
Three times disunion threatened; the Missouri question in 1820;
the nullification controversy, 1828-33; and issues arising in 1850
from the Mexican War. Three times North and South backed down.
But the last decade of “peace” saw a failure to compromise on
both sides.
6 March 1857--the ominous Dred Scott decision was handed
down just 2 days after the beginning of the unsuccessful presidency
of James Buchanan.
jbp

Dred Scott: the facts
Beginning in 1819, Virginia-born slave Scott• followed his owner, U.S.
Army surgeon John Emerson, through a variety of free states and territories.
In 1846, after passing up numerous opportunities to take his freedom, he
attempted to purchase it from his current owner. When that was denied, he
began a tortuous series of legal attempts to obtain it with the help of
abolitionist backers.
jbp

After losing cases in the state courts of MO and NY, Scott again sued his
current owner, John Sanford, but this time in federal court. The grounds for
taking the case to federal court were that Sanford was a resident of New
York, having returned there in 1853, and that the federal courts could hear
the case under diversity jurisdiction provided in III, 2, 1 of the U.S.
Constitution.
jbp

After losing cases in the state courts of MO and NY, Scott again sued his
current owner, John Sanford, but this time in federal court. The grounds for
taking the case to federal court were that Sanford was a resident of New
York, having returned there in 1853, and that the federal courts could hear
the case under diversity jurisdiction provided in III, 2, 1 of the U.S.
Constitution.
At trial in 1854, Judge Wells directed the jury to rely on Missouri law
to settle the question of Scott's freedom. Since the Missouri Supreme Court
had held that Scott remained a slave, the jury found in favor of Sanford.
Scott then appealed to the U.S. Supreme Court. Chief Justice Roger Taney•
wrote the decision, considered to be the worst in the Court’s history
jbp

Dred Scott: the issues
• did the Federal Circuit Court have jurisdiction?
• did Scott have standing to sue?
• did Scott's residency in the free territory of Wisconsin
make him a free man?

Dred Scott: the decision
• no--as a slave, Scott could not be a citizen of any state. Thus
Art. III, Sect. 2, Cl. 1 which gives jurisdiction in “cases between
citizens of different states” did not apply
• no--Chief Justice Roger Taney went on to say that no
descendant of slaves could ever become a citizen
• no--On this point, Taney also specifically cited the Supreme
Court of Missouri's denial of Dred Scott's freedom. Because the
United States Circuit Court did not have jurisdiction on this
matter, Taney argued, the decisions of the government of
Missouri took precedence. Scott could not be a free man

“beings of an inferior order”

“beings of an inferior order”
“Relying upon statements made by Charles Pinckney, who had claimed
authorship of the Privileges and Immunities Clause during the debates over the
Missouri Compromise, Taney decided: "the affirmative of these propositions
[that the founders considered slaves to be citizens] cannot be maintained."
According to Taney, the authors of the Constitution had viewed all blacks as
beings of an inferior order, and altogether unfit to associate with the white race,
either in social or political relations, and so far inferior that they had no rights
which the white man was bound to respect.”
Wikipedia
“Taney spent pages 407-421 of his decision chronicling the history of slave
and negro law in the British colonies and American states. His goal was to
ascertain whether, at the time the Constitution was ratified, federal law could
have recognized Scott...as a citizen of any state within the meaning of Article III.

obiter dictum
from Roman law ( said in passing)
The new Republican Party and its Abolitionist allies were horrified at the
opinion of Maryland slaveowner Taney. It seemed to close the courts
completely as an avenue to fight against slavery. In his rambling decision he
had also declared the Missouri Compromise unconstitutional. It was only
the second time that judicial review of Congressional legislation had been
exercised.
So the opponents labelled sections such as this as obiter dictum. That is,
not binding as precedent in future cases. The Scott case wasn’t the fuse
which ignited the Civil War but it certainly was part of the long range
causes. It was one more factor which made further compromise all but
impossible.
jbp

[The Congress shall have Power] To regulate Commerce with foreign Nations,
and among the several States, and with the Indian tribes
I,8,3-The Commerce Clause
I,8,18-The Elastic Clause
or
The “Necessary andProper” Clause
To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or
Officer thereof

The significance of the Commerce Clause is described in the Supreme Court's
opinion in Gonzales v. Raich, 545 U.S. 1 (2005)
The Commerce Clause emerged as the Framers' response to the central
problem giving rise to the Constitution itself: the absence of any federal
commerce power under the Articles of Confederation. For the first century of
our history, the primary use of the Clause was to preclude the kind of
discriminatory state legislation that had once been permissible. Then, in
response to rapid industrial development and an increasingly
interdependent national economy,[emphasis added-jbp] Congress “ushered
in a new era of federal regulation under the commerce power,” beginning with
the enactment of the Interstate Commerce Act in 1887 and the Sherman
Antitrust Act in 1890.
The Commerce Clause represents one of the most fundamental powers
delegated to the Congress by the founders. The outer limits of the Interstate
Commerce Clause power has been the subject of long, intense political
controversy. Interpretation of the sixteen words of the Commerce Clause has
helped define the balance of power between the federal government and the
states and the balance of power between the two elected branches of the
Federal government and the Judiciary. As such, it has a direct impact on the
lives of American citizens.
Wikipedia

The driving of the golden spike
Promontory Point, UT
10 May 1869

The Civil War accelerated America’s transformation to a
modern industrial economy. This dynamic, steam-powered,
colossus found its signature achievement in the railroad: the
heavy industry which supported it , the finance capital which it
both required and created and the transportation revolution
which it ushered in.
The challenges which this new economy produced would
forever erase the laissez-faire government policies which had
been typical of the early industrial revolution.
jbp

through the Lakota’s sacred Black Hills (filled with Au & Ag)
1876 Centennial, Deadwood & Custer’s Last Stand

Since mid-century the railroads had served as America’s great
generator of opportunity, opening new avenues of commerce,
consuming quantities of steel and coal, and fostering a host of
subsidiary industries.
Robert Wiebe, The Search for Order; 1877-1920. p. 22

Populist cartoon of the ‘70s

“The 1%”--1870s style
“When Commodore Vanderbilt died in 1877, he left a fortune of $90
million. While the people struggled day by day, the argument ran, a few men
far away were hoarding the nation’s wealth and power.
Wiebe, p. 8

“The 1%--1870s style
“When Commodore Vanderbilt• died in 1877, he left a fortune of $90
million•. While the people struggled day by day, the argument ran, a few
men far away were hoarding the nation’s wealth and power. ‘The time was
when none were poor and none were rich,’ the Texan John Reagan told his
constituents that year as he left for Washington to battle the monopolists.
“There were no beggars till Vanderbilts and Stewarts and Goulds and
Scotts and Huntingtons and Fisks shaped the actions of Congress and
moulded the purposes of government. Then the few became fabulously
rich, the many wretchedly poor… and the poorer we are the poorer they
would make us.’ “
Wiebe, p. 8

farmers felt threatened by the new economic forces and the
post-war series of depressions (1870s-90s)
they organized (the Granger Movement) and sought legal
protection through a series of legislative initiatives & court cases
The Populist Movement (1860s-1890s)
agriculturalists vs. industrialists
country vs. city

The Grange
THE FARMERS’ MOVEMENT IN THE WEST--MEETING OF THE GRANGERS IN THE
WOODS NEAR WINCHESTER, SCOTT COUNTY, ILLINOIS.--SKETCHED BY JOS B. BEALE

these moved from the state to the federal courts, finally arrived
at the USSC
1877-the crowning accomplishment of this campaign was Munn v.
Illinois

Munn v. Illinois, 1877
facts-Munn operated a grain elevator. The State of Illinois
passed a”granger law” regulating the rates he could charge
farmers
issues-At issue was whether the act of the Illinois Legislature in 1871,
to regulate public warehouses and the inspection and handling of grain,
was constitutional
decision-(7-2) delivered by• decided that the Fourteenth
Amendment (because Munn asserted his due process right to property
was being violated) did not prevent the State of Illinois from regulating
charges for use of a business' grain elevators. Instead, the decision
focused on the question of whether or not a private company could be
regulated in the public interest. The court's decision was that it could, if
the private company could be seen as a utility operating in the public
interest.
significance-(1) it allowed states to regulate certain businesses within
their borders, including railroads (2)it is commonly regarded as a
milestone in the growth of federal government regulation--Wikipedia
Morrison Remick "Mott" Waite
(1816 – 1888)
attorney and politician in Ohio
seventh Chief Justice of the USSC
1874 - 1888

AM XIV.1-”due process right to property”?
The Due Process Clause of the Fourteenth Amendment applies
against only the states, but it is otherwise textually identical to the Due
Process Clause of the Fifth Amendment, which applies against the
federal government; both clauses have been interpreted to encompass
identical doctrines of procedural due process and substantive due
process. Procedural due process is the guarantee of a fair legal
process when the government seeks to burden a person's protected
interests in life, liberty, or property, and substantive due process is
the guarantee that the fundamental rights of citizens will not be
encroached on by government. The Due Process Clause of the
Fourteenth Amendment also incorporates most of the provisions in the
Bill of Rights, which were originally applied against only the federal
government, and applies them against the states.
Wikipedia

Incorporation of the Bill of Rights
While many state constitutions are modeled after the United States Constitution and
federal laws, those state constitutions did not necessarily include provisions
comparable to the Bill of Rights. In Barron v. Baltimore (1833), the Supreme Court
unanimously ruled that the Bill of Rights restrained only the federal government, not
the states. However, the Supreme Court has subsequently held that most provisions
of the Bill of Rights apply to the states through the Due Process Clause of the
Fourteenth Amendment under a doctrine called "incorporation".
Wikipedia

Incorporation of the Bill of Rights
While many state constitutions are modeled after the United States Constitution and
federal laws, those state constitutions did not necessarily include provisions
comparable to the Bill of Rights. In Barron v. Baltimore (1833), the Supreme Court
unanimously ruled that the Bill of Rights restrained only the federal government, not
the states. However, the Supreme Court has subsequently held that most provisions
of the Bill of Rights apply to the states through the Due Process Clause of the
Fourteenth Amendment under a doctrine called "incorporation".
Whether incorporation was intended by the amendment's framers, such as John
Bingham•, has been debated by legal historians.According to legal scholar Akhil
Reed Amar•, the framers and early supporters of the Fourteenth Amendment
believed that it would ensure that the states would be required to recognize the
same individual rights as the federal government; all of these rights were likely
understood as falling within the "privileges or immunities" safeguarded by the
amendment.
By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had
been applied to the states. The Supreme Court has held that the amendment's Due
Process Clause incorporates all of the substantive protections of the First, Second,
Fourth, Fifth (except for its Grand Jury Clause) and Sixth Amendments and the
Cruel and Unusual Punishment Clause of the Eighth Amendment.
Wikipedia

Demand for Government Regulation Culminates in ...
1870s-various groups, especially the Grange movement, lobbied Congress to curb the
railroads
1886-the Wabash case (6-3, with Chief Justice Waite in dissent) severely limited states’
power to regulate railroads, citing I.8.3 (the commerce clause). Regulating “commerce
between the States” was enumerated as a federal power

Demand for Government Regulation Culminates in ...
1870s-various groups, especially the Grange movement,
lobbied Congress to curb the railroads
1886-the Wabash case (6-3, with Chief Justice Waite in
dissent) severely limited states’ power to regulate
railroads, citing I.8.3 (the commerce clause). Regulating
“commerce between the States” was enumerated as a
federal power
the following year Congress passed, and Grover
Cleveland signed, the Interstate Commerce Act
as the first government agency to regulate big
business, the ICC established the precedent for the
host of such “fourth branch” bodies. They combine
legislative, executive and judicial powers

The Sherman Antitrust Act, 1890
ratified in the Senate, 51-1; in the House, 240-0
this landmark statute prohibits certain business activities
deemed anticompetitive, “conspiracies in restraint of trade”
1901-Teddy Roosevelt was the first President to vigorously
apply its investigative and prosecutorial powers to pursue
monopolies or cartels
its purpose:
“To protect the consumers by preventing arrangements designed,
or which tend, to advance the cost of goods to the consumer.”-
John Sherman
“The Sherman Act has been a magnet for controversy. One
branch of the criticism focuses on whether the Act improves
competition and benefits consumers, or merely aids inefficient
businesses at the expense of more innovative ones.
John Sherman
(1823 – 1900)
nicknamed ʻThe Ohio Icicleʼ
Ohio Representative in Congress
1855 - 1861
Ohio Senator
1861 - 1877 & 1881 - 1897

Trusts*-The Populist Target
During the post-Civil War “Gilded Age” railroads were only the most
visible example of business expansion and consolidation. The era was
one of competitive, some say predatory, capitalism. In many fields, the
most innovative and successful companies sought to acquire a
dominant position, even a practical monopoly. We will look at the two
most famous examples. Both were led by men from humble origins
who, like Commodore Vanderbilt, became fabulously wealthy -- ”the
American Dream, from rags to riches.”
jbp
_______________
* contracts that placed the voting stock of several companies in the hands of
“trustees”--Wiebe, p. 24 (n)

Integration-defining the terms

A Simpler Diagram
Vertical-here, Armour & Co.
1867-1980s
Horizontal-here, Standard Oil Trust
1870-1911 (when USSC ruled illegal)

Standard Oil Trust-primarily horizontal

Standard Oil-Its ‘Robber Baron’
founder, John D. Rockefeller was born 2nd of 6 to a
ne’er-do-well father and a devout Baptist
mother.Went to work as a bookkeeper, age 16
1857
age 18

1870-(age 31)founded SO in Ohio. First, dominated
the oil products market through horizontal
consolidation in the refining sector
John Davison Rockefeller
1839 – 1937
picture c. 1872

1870-(age 31)founded SO in Ohio. First, dominated
the oil products market through horizontal
consolidation in the refining sector
then, in later years, vertical consolidation to
become the largest oil refiner in the world and one
of the first and largest multinationals
1911-when SO was broken up, as major shareholder,
he became the richest man in the world (adjusted
for inflation-the richest in history)
John Davison Rockefeller
1839 – 1937
picture 1885

The Carnegie Birthplace, Dunfermline, Scotland

Carnegie Steel Corporation
1843-his father a Scots weaver, the family emigrated
due to hard times (the “Hungry ‘40s)-- Andrew, age
13), to Allegheny, PA. His 1st job, a bobbin boy,
changing spools in a cotton mill-12 hr/day, 6 days a
week, $1.20/wk
age 16, with
brother Thomas

week, $1.20/wk
1850-85-with many career changes, Carnegie’s
character, talents and shrewd investments prepared
him for his amazing role
age 35,
1878

week, $1.20/wk
1885-1900-using the latest technology, vertical
consolidation, M & As, he built his empire. In 1889 US
steel production surpassed the UK’s and Carnegie
owned a big part of itAndrew Carnegie
1835 – 1919
picture 1913

week, $1.20/wk
1885-1900-using the latest technology, vertical
consolidation, M & As, he built his empire. In 1889 US
steel production surpassed the UK’s and Carnegie
owned a big part of it
1901-J.P.Morgan engineered the U.S. Steel Corp.
and Carnegie used his buyout to be the world’s
greatest philanthropist

“Good Trusts” & “Bad Trusts”?

In 1887, a thirty-one-year-old Progressive university
professor wrote an article which expresses the beliefs of the
movement. He had just earned a PhD in history and political
science at Johns Hopkins. Two years later he would join the
Princeton faculty, rising to become its president in 1902. His
name, Thomas W. Wilson. More will be heard from him…
jbp

“The socialist….points to the incontrovertible fact that the
economic and social conditions of life in our century are...radically
different from those of any other time whatever. Many affairs of
life which were once easily...handled by individuals have now
become so entangled… ,so confused… ,that only powerful
combinations of wealth and influence can [deal with] them.
Corporations grow on every hand, and not only swallow and
overawe individuals but also compete with governments….Here is a
monstrously changed aspect of the social world. In face of such
circumstances, must not government lay aside all timid scruple and
boldly make itself an agency for social reform as well as for
political control?”
T. Woodrow Wilson,”Socialism and Democracy,” August 22, 1887, quoted in Hillsdale, pp. 647-48

“...a new middle class--largely urban professional men and
women--...developed the new values of ‘continuity and regularity,
functionality and rationality, administration and management’ in
order to cope with twentieth-century problems. Inevitably this new
value system, consciously in conflict with that of nineteenth-
century America, led the new middle class to see ‘the need for a
government of continuous involvement’ and to emphasize
executive administration. The Progressive movement was the
triumph of this new middle class with its bureaucratic mentality.”
David Herbert Donald,introduction to, Robert Wiebe, The Search for Order; 1877-1920. p. viii

Populists and Progressives Compared
Populists Progressives
period of greatest
influence
1870s-1900s 1890s-1920s
geographic power
base
rural urban
social class base farmers
middle class
professionals
attitude towards
progress
feared
believed they
represented it

IV. A-A New Kind of President
1900-when McKinley ran for a second term and
chose “the hero of San Juan Hill” as his running
mate, OH conservative boss Mark Hanna remarked:
“There’s only one life between that damn cowboy and
the White House!”

the White House!”
Sept, 1901-T.R. became our youngest president and
brought activism never before seen
age 42

the White House!”
Sept, 1901-T.R. became our youngest president and
brought activism never before seen
he immediately went after the Trusts
to focus the attack, he created the short-lived
Department of Commerce and Labor
1903-McKinley had been unwilling to go after the
Northern Securities Co., a giant railroad trust. TRs
first order to Justice:sic ‘em! [JP Morgan’s response?}
1906-when his Elkins Act (1903) proved ineffective
in strengthening the ICC, he proposed the Hepburn
Act . It worked
age 42

A Cartoonist’s Dream
George Cortelyou,
Secretary of the new
Department of
Commerce and Labor

IV. B-Muckrakers
1906-TR, who liked to manage the press & choose his
own targets, coined the label in a speech, “The Man
with a Muckrake” who prefers to focus on filth
the “Muckrakers” turned the tables & took it as a
badge of honor
1902- McClure’s magazine is considered to be beginning
of the genre. It contained three articles:

IV. B-Muckrakers
badge of honor
Ida Tarbell, “History of Standard Oil”

IV. B-Muckrakers
1906-TR, coined the label in a speech, “The Man with a
Muckrake” who prefers to focus on filth
badge of honor
1902- McClure’s magazine contained three articles:
Lincoln Steffens, “The Shame of the Cities”

IV. B-Muckrakers
badge of honor
Lincoln Steffens, “The Shame of the Cities”
Ray Stannard Baker, “The Right to Work” about the
dangerous conditions in the coal mines

Two Muckraking Novelists
1901-The Octopus was his exposé of the Muscle Slough
tragedy of 1880
hired guns of the Southern Pacific Railroad gunned down
11 protesting farmers at Muscle Slough
Benjamin Franklin Norris, Jr.
Frank Norris
1870 – 1902

1901-The Octopus was his exposé of the Muscle Slough
tragedy of 1880
hired guns of the Southern Pacific Railroad gunned down
11 protesting farmers
Muscle Slough was the scene
of murder by toughs hired
by the railroad, who killed
protesting farmers

planning a trilogy of wheat, his next book was The Pit
(1903-published posthumously)
it described the corrupt shenanigans of the Chicago
Board of Trade, where wheat was traded and exported to
the world
Chicago BOT

planning a trilogy of wheat, his next book was The Pit
(1903-published posthumously)
it described the corrupt shenanigans of the Chicago
Board of Trade, where wheat was traded and exported to
the world
another famous muckraking novelist of the period was
Upton Sinclair. He also focused on Chicago, “hog
butcher to the world”
1906-his novel, The Jungle, had huge political
consequences
Upton Beall Sinclair, Jr.
Upton Sinclair
1878 – 1968

it grew out of an investigation he did for a socialist
newspaper
The book depicts poverty, the absence of social
programs, unpleasant living and working conditions,
and the hopelessness prevalent among the working
class, which is contrasted with the deeply rooted
corruption of people in power
A review by the writer Jack London called it, "the Uncle
Tom's Cabin of wage slavery."
but what the public seized upon were the horrific,
unsanitary conditions of the meat-packing trust

T.R. Responds, grudgingly
A NAUSEATING JOB, BUT IT MUST BE DONE
President Roosevelt takes hold of the investigating “muck-rake” himself in the packing -house scandal

1906-it was this event which led T.R. to give the speech
which named them Muckrakers

1906-it was this event which led him to give the speech
which named them Muckrakers
Sinclair went on to write almost a hundred books
Time magazine called him "a man with every gift except humor
and silence." -Wikipedia
In 1943, he won the Pulitzer Prize for Fiction.
Sinclair also ran unsuccessfully for Congress as a
Socialist, and was the Democratic Party nominee for
Governor of California in 1934, though his highly
progressive campaign was defeated rather soundly-
Wikipedia

IV. C-The Muckrakers’ Targets
corruption
waste
inefficiency
urban problems
immigrant assimilation
labor exploitation
saloons--targets of the Anti-Saloon League
“machines” (Bossism)
slums
public health issues, pollution
poor schools
the “unfit” --targets of the eugenics movement

IV. C.1-The Bosses
1902-although the Tweed Era ended with Boss Tweed’s death in 1878, his career had
been so spectacular that Lincoln Steffens began his Shame series with “Tweedism in St.
Louis”

IV. C.1-The Bosses
Louis”
a sample of urban political machines:
St. Louis (4th largest city)-- “Uncle” Henry Ziegenhein (R)
Chicago (“Second City”)--Roger Sullivan (D)2nd gen. Ire., ran Cook Co. Dem. Party, arch
enemy of Wm Jennings Bryan
no
image

IV. C.1-The Bosses
Louis”
Indianapolis--Tom Taggart (D) Ire., mayor 1895-1901, Chair DNC 1904-08, 1912 Dem. Nom.
Convention, with Sullivan, blocked “crazy reformer” Bryan, French Lick gambling interests

IV. C.1-The Bosses
Louis”
NYC--Richard Croker (D) County Cork, “boss”of Tammany•, 1884-1901•

IV. C.1-The Bosses
Louis”
NYC--Richard Croker (D) County Cork, “boss”of Tammany•, 1884-1901•
Cincinnati--Geo Barnsdale Cox (Rep.) 2nd gen. Br., saloon keeper, ward boss, Ham Co.
Rep.Chair until died of a stroke, 1916 --his mansion by Burnet Woods

IV. C.2-Urban Poverty
The Bosses had their solution to the problem. They organized
city services to meet the previously undirected growth of the
inner cities. “Ward heelers”* like Cox organized the (often
immigrant) poor by “fixing” their problems in return for voting
loyalty.
But the middle class Progressives scorned bossism. They
looked down on the graft and “ill-gotten gains” of the lower
class operators. When T.R. told his upper class chums that he
intended to run for office against Tammany, they thought he was
mad.
Instead of seeking office many genteel reformers took the
private voluntary path of the Settlement House.
jbp
___________
* ward heeler
noun informal, chieﬂy derogatory
a person who assists in a political campaign by canvassing votes for a party and performing
menial tasks for its leaders.

IV. C.2.a-The Settlement movement
1884- Toynbee Hall in England was the first Settlement House. It attracted idealistic
middle class volunteers to live among the poor and help them learn coping skills
1889- inspired by their visit there, Jane Addams• and her partner Ellen Gates Starr
founded the first American Settlement, Hull House in Chicago
its variety of programs were widely influential
English and citizenship classes for immigrants
free clinics where medical students did their residency serving the inner city poor
women’s programs to teach home economics and the new feminist ideology
children’s day care and early childhood education
1903-a 34-year-old Methodist minister and his “modern woman” college-educated
wife were hired to start Cincinnati’s first Settlement House
1913-a decade later, there were 413 settlements in 32 states
picture, 1912

1884- Toynbee Hall was the first Settlement House. It attracted idealistic middle
class volunteers to live among the poor and help them learn coping skills
1889- inspired by their visit there, Jane Addams and her partner Ellen Gates Starr

Hull House Women’s Club Building
Immigrant
Children’s
Melting Pot
Tableau

1903-a 34-year-old Methodist minister and his “modern woman” college-educated
wife were hired to start Cincinnati’s first Settlement House
1913-a decade later, there were 413 settlements in 32 states

IV. C.2.b-A Cincinnati example
1884-Jimmy White, (15)born in Canada to Scotch-Irish
parents, came to Saginaw to strike-break
his employer was so impressed that he helped to go to
Albion College part time
James Orm White
1869-1926

1894-there he (25)met his future wife and helpmate, Bessie
Bruce (18)
1899-married, they went to Boston U. where he took his
B.D. and she an M.A in history
1903-moved to Cincinnati to turn the Union Bethel (1837-
present) into a Settlement like Hull House
they introduced many innovative programs
Bessie Bruce White
1876-1960

Rev. Mr. White of Union Bethel Cincinnati, teaching children lessons in gardening.

1894-there he (25)met his future wife and helpmate, Bessie
Bruce (18)
1899-married, they went to Boston U. where he took his
B.D. and she an M.A in history
1903-moved to Cincinnati to turn the Union Bethel (1837-
present) into a Settlement like Hull House
they introduced many innovative programs
1906-Jimmy proposed a residence for working girls from the
countryside--a safe Christian “home”
1909-Charles P. Taft matched every dollar which Jimmy
collected from the other patricians. The Anna Louise Inn
was named for his daughter
Charles Phelps Taft
1843-1929

When the Inn opened in 1909, it immediately filled & had a waiting list of 100
300 Lytle St.

, Pike St. addition (1920)
Once again, Taft gave the land and much of the construction cost

The Progressive reform movement had many allies: in government, the
universities, the press, middle class professionals, clergy. The Old Order
was on the defensive. But it had an important ally.
A conservative U.S. Supreme court.
jbp

IV. D-Judicial Review Applies the Brake
Melville Weston Fuller, 8th Chief Justice

IV. D-Judicial Review Applies the Brake
The Fuller Court- 1888-1910--
U.S. v E.C. Knight Co., !895--tested the Sherman Anti-Trust Act, ruled ( 8-1) against the
government’s right to break up a 98% monopoly of the sugar industry
Plessy v. Ferguson, !896--ruled (7-1)that a LA state law requiring “separate but equal”
railroad accommodations for Negroes did not violate the “equal protection” clause of
AM XIV. Dissent by John Marshall Harlan*
Allgeyer v Louisiana., !897--unanimously struck down a pro-union law on the grounds that
it violated an individual’s “liberty to contract.” This was the first case in which the
Supreme Court interpreted the word liberty in the Due Process Clause of the Fourteenth
Amendment to mean economic liberty
ICC v Cin’ti, New Orleans, and Texas Pacific Railway Corp., !897--ruled that the ICC had
executive & judicial, but not legislative power. It could not fix rates.

IV. D.1-The Lochner Era-1897-1936
the name given to this period of conservative Supreme Court decisions which
wrecked Progressive attempts to use federal and state laws to curb “Big Business ”
Lochner v. New York, 1905 - relying on the Allgeyer precedent, the Fuller Court struck
down a NY state law limiting weekly working hours
Adair v. United States, 1908 - striking down federal legislation prohibiting railroad
companies from demanding that a worker not join a labor union as a condition for
employment ("yellow-dog contract")
the White & Taft Court cases will be discussed but here’s how the New Deal cases round
out the Lochner Era:
United States v. Butler, 1936 - construing I.8.3 (giving Congress the taxing power) to rule
the Agricultural Adjustment Act (AAA)unconstitutional
Carter v. Carter Coal Company, 1936 - striking down federal legislation regulating the coal
industry, thus gutting the Nat’l Recovery Administration (NRA), FDR’s other key
program

IV. D.1-The Lochner Era-1897-1936
the name given to this period of conservative Supreme Court decisions which
wrecked Progressive attempts to use federal and state laws to curb “Big Business ”
Lochner v. New York, 1905 - relying on the Allgeyer precedent, the Fuller Court struck
down a NY state law limiting weekly working hours
Adair v. United States, 1908 - striking down federal legislation prohibiting railroad
companies from demanding that a worker not join a labor union as a condition for
employment ("yellow-dog contract")
the White & Taft Court cases will be discussed (below) but here’s how the New Deal
cases round out the Lochner Era:
United States v. Butler, 1936 - construing I.8.3 (giving Congress the taxing power) to rule
the Agricultural Adjustment Act (AAA)unconstitutional
Carter v. Carter Coal Company, 1936 - striking down federal legislation regulating the coal
industry, thus gutting the Nat’l Recovery Administration (NRA), FDR’s other key
program

IV. D.1-The White and Taft Courts
9th 10th

The White Court- 1910-1921
Coppage v. Kansas. 1915-striking down state legislation
prohibiting yellow dog contracts
Hammer v. Dagenhart. 1915-striking down federal
regulation of child labor. A father had sued claiming his
two sons, under 14 were denied their “liberty of
contract”!
Duplex Printing Press Co. v. Deering. 1921-construing
federal legislation not to exempt labor unions from
antitrust lawsuits!

The Taft Court- 1921-1930
Bailey v. Drexel Furniture Co., 1922-
invalidating a federal tax on
interstate commerce by employers
hiring children
Adkins v. Children’s Hospital, 1923-
striking down federal legislation
mandating a minimum wage for
women and children in the District
of Columbia. Both Taft and Oliver
Wendell Holmes dissented. Liberal
Associate Justice Louis Brandeis
didn’t participate in the case

The nineteen-twenties saw conservative forces using the Constitution
to impede the Progressive movement. Two Progressive presidents, T.R.
and Wilson, were succeeded by three conservatives: Harding, Coolidge
and Hoover. But the real brake was the Supreme Court’s power of
judicial review.
The Lochner Era clearly demonstrates the tremendous importance of
the process. But with the presidential election of 1932, the greatest
Progressive of them all would use his power of appointment to slowly
change the course of the Ship of State.
Judicial review cuts both ways. But that’s another story...

We The People, session iv, Interpretation

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